Wednesday, April 1, 2015

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A 2012 Santa Barbara Superior Court ruling was upheld last week by the state Court of Appeals, requiring that the City of Santa Barbara issue rebuilding permits to three Sycamore Canyon homeowners who lost their homes in the Tea Fire. In that 2012 decision, Judge Thomas Anderle stated that a 1997 city ordinance banning new construction in the area — known as “Slide Mass C” — constituted an “unlawful regulatory taking” of the properties after the residents’ homes were burned down.

The Tea Fire ravaged the Santa Barbara and Montecito foothills in November 2008, destroying more than 200 homes and heavily damaging the surrounding area. Among the properties destroyed were the single-family residence homes of Luke Brost, Ruben and Pamela Barajas, and Lavell and Louise Canley, each located entirely within the Sycamore Canyon portion of the Conejo landslide area known as Slide Mass C.

The Sycamore Canyon area has had a history of unstable movement, prompting the city in 1997 to adopt an ordinance prohibiting new construction on properties entirely within the landslide area, based upon geological reports contending that “damage to structures and property within the boundary of Slide Mass C is highly probable.”

Because of the ordinance, Brost, the Barajases, and the Canleys were barred from receiving permits allowing them to rebuild their homes and prevented from collecting financial compensation from the city for their loss of property after the 2008 fire.

According to Joseph Liebman, the homeowners’ lawyer during the lower-court proceedings, his clients initially hired him with the intention of securing permits to rebuild their homes. “It was only after the city had repeatedly refused to issue the permits did my clients and I proceed with the lawsuit,” he said. He continued to say that he believed that issuing permits right after the fire would have been “the right and proper thing” for the city to do, and would have saved them the costs of attorney’s fees and damages. Echoing this sentiment was the families’ appellate attorney, Herb Fox, who referred to the entire case as a “colossal waste of taxpayers’ money.”

During the trial court proceedings, Judge Anderle informed now-former City Attorney Stephen Wiley that the city could either leave its ordinance in effect and purchase the three properties for full market value, or amend the ordinance to permit reconstruction and only compensate the homeowners for a three-year taking, the amount of time they were unable to reside in their homes.

Opting for the latter, the city agreed to amend the ordinance in 2012 and pay each of the families approximately $42,000. In addition, the city was ordered to pay upward of $400,000 in attorney’s fees. The City then appealed the case in early 2013, seeking to reverse the trial court’s judgment and order awarding attorney’s fees and costs to the homeowners.

Referring to numerous case law in its agreement with the earlier judgment, the Appellate Court noted that “At best, the evidence established that uncertainty exists regarding the future stability of the geology” of the region, but this “speculative harm” remains insufficient for the city to exclude the families “from all economically beneficial uses of their properties.” The Appellate Court again ordered the city to reimburse the homeowners for attorneys’ fees and costs incurred during the appeals process, a number estimated to hover around $200,000 — more than three times the amount of property damages.

According to Liebman, the Canleys and Brost have since sold their properties in an effort to “move on with their lives.” The Barajases remain unsure of whether or not to relocate to their former property. When asked to comment on the Appellate Court’s decision, Ruben Barajas posed the question: “If [the city] used the time and money they spent on fighting us, why didn’t they go after the people that started the fire in the first place?”

City Attorney Ariel Calonne noted that his office is in the process of consulting with the City Council about whether or not to submit a petition to review the decision to the California Supreme Court.

Comments

What an incredible waste of taxpayer money. Rather than prohibit building on questionable land why not let the landowner rebuild with a deed restriction the indemnifies the City from any responsibility should the home slide down the hill. Put the onus on the owner, not the City.

This basically shows how incompetent people become when they stand behind rules and procedures as opposed to common sense. First the city says it's unsafe to rebuild and to bad, we won't pay you fair compensation for that decision. It takes the courts and huge attorney fees to remedy. (Stephen Wiley says "thanks" for his highest salary and overtime bill of $325k.) Then once remedied, the city goes AGAINST their very own common sense of how it's unsafe, and modifies the rules instead. This means only one of two things: 1) The city incompetently set a rule that was false. 2) The city is participating in gross negligence and allowing a build on unsafe land. Guess what happens if and when that land slides again? These very people can and will sue for damages.

Ruben Barajas makes a good point -- the City could have spent that money on prosecuting the offenders. As it went, the dozen or so partying, foreign SBCC students were seemingly protected by the D.A. under unusual circumstances and merely had to perform some trifle of community services hours in their home countries. In fact, I'm not sure their names were ever released as part of the plea deal they made. Very strange indeed. See? Maybe there ARE too many out-of-state and foreign students at SBCC. They are literally burning the town down.

HG - for once I agree that we should be outraged at this screw up. Those blood-sucking lawyers will bleed the city dry given half the chance. Lawyers get elected to office and create laws that benefit themselves. They are all crooks!

Marty Blum was a lawyer, got on city council in 1995, two years before the ordinance was put in place. She passed it. Stayed on council and was mayor before and after and this ordinance was applied to these post 2008-fire property owners.

Send the bill to Blum. Aren't term limits great? Those who do the damage get to walk away scot free, and leave us with the mop-ups. Deduct the $700,000 from her city hall pension.

Time to rethink what term limits have done to us, if we thought they were a way to "reform" government.

It'd be interesting to file FOIA's (a bureaucratic cost-inflating procedure) to see how much we're really paying for this incompetence. I have neighbors who tried to remove a tree a few years ago because they were concerned about the roots growing into the gas line and also breaking a masonry wall on the property line. They paid the $150 the city charges for a permit. The whole city council went to their home to look at the tree. Dale Francisco used his SOP for dispute resolution; a fabrication that this kind of tree had very limited root expansion and couldn't possibly break the gas line. The city refused to allow the tree removal.The block wall is now cracked due to the tree's growth. If the gas line broke and resulted in a fire that burned both adjacent houses to the ground, I wonder what the city's liability would be, particularly considering the fact that Francisco's official statement on the root spread had no basis in fact and was made by someone with no knowledge or experience regarding trees.A minor issue, but attorneys usually bill by the hour rather than by a scale based on the magnitude of damages.

Seems like the city was trying to avoid paying compensation for the three properties and just ended up giving money to lawyers instead. Legislate the value of their properties away and then offer no compensation for the loss? Anyone could have seen this ruling coming a mile away. Wiley has cost the city so much in useless lawsuits that he loses.

And now the worst of it is that new construction will occur there when everyone knows it's a bad idea. And someday 75 years from now when a landslide kills someone, people will look it up in the history books and say why the hell did anyone allowing rebuilding there?

If only the real world were as simplistic as the one Herschel Greenspan seems to live in. Since you seem to have the legal knowledge and wisdom that the office of the City Attorney lacks, answer this: if the City issues building permits for lots it knows to be unsafe, who will be sued when a landslide occurs? Oh, you hadn't thought of that.

City could issue a building permit for an unsafe area too, as long as all parties were upfront and fully accepted the consequences with no later recourse. All set forth in the deed, to run with the land. Like it better when a city provides guidance, but still allows a certain degree of private property autonomy. All things considered. We need to re-set the nanny-state button in this town.

We need a city council that is pro-active rather than reactive. The reason that these cases cost so much money is that the city council should have settled when it would have been less expensive. The city attorney was giving the city council poor advice .

The reason they cost so much money is because of greedy lawyers. Are you saying that Cappello couldn't have done his work for $100 per hour instead of $950? He is not serving the public interest. He is a self-serving POS.

But JJ - what about the house down the hill that the new house slides into? Who knows, Barry Cappello might live there!Seriously, the City and/or other state or federal agencies that define the slide zone should have acquired the properties after the fire. I imagine there was some dispute over the fair market value (being in a slide zone and all..). It's not like this were some aesthetic or zoning density issue, though - if the land is unsafe, it should not be developed. Period.(Either way, good luck to the new homeowners in finding insurance!)

The uphill property owner would have to bond themselves for that likelihood, or design around it. If it was so unsafe prior to the fire, why didn't the city condemn it in the first place? Particularly if Barry Capello lived downhill. Shoot, why didn't Barry Capello sue preventively ahead of time to this known and obvious peril.

Point is, sometimes, just sometimes, the city gets too full of itself and tramples too many private property rights without clear and objective purpose or full understanding of the larger consequence of their in-house decision or decision processes.

City needs to be reigned in because it passed long ago into its own self-perpetuating beast and is no longer a representative of "the people". Voters did this to themselves, but they are now starting to wake up to what they themselves hath wrought.

Whether this sudden switch to district elections will squelch this new citizen awakening or bury things even further remains to be seen. I am not hopeful.

Bonding, insurance, deed restrictions that probably aren't worth the paper upon which they're written... jeez. Sounds like the Texas approach: no zoning or building regs; The Market will prevent bad things from happening.

Why did you jump from appropriate restrictions to no restrictions, Mohr. Do you want to discuss this. or just bludgeon dissent? So tired of the false dichotomy arguments. (If it isn't this, then it is the end of western civilization as we know it and a bunch of dead puppies too.)

In this case it was a replacement home to be built on the same lot after a natural disaster not of their making, and not building something new from scratch. Judge Anderle made a good decision here.

That is why I can see some degree of flexibility needs to put into the equation. When government gets too rigid, it breaks. Too loose and it corrupts. Keep trying to hit the sweet spot. And take a little judicial help along the way when necessary.

BTW: I think there are some very creepy areas (pun not intended) in this town - where anyone sane might not want to invest their home and lifesavings and this is certainly one of them. But it was their home (and school district for their kids) and since there was no condemnation proceeding against them before the fire, I can appreciate their desire to return.

There was no real dispute as to the fair market value of the properties. Contrary to the city's position, the court found that there was no proof that the lot was unsafe. The city council passed a flawed ordinance. They were confronted with that reality and they decided to fight. That bad decision was paid for by the taxpayers. This city council reacts poorly to tough decisions and does very little to fix issues before they become critical. That reminds me of the good old days when Gerry was on the council.

It still seems that if the judge found them "safe," as you say, then the designation should have been ordered lifted. I did not read that. What I read was that restoration to pre-fire condition would be allowed, but that the designation would remain. That seemed contradictory to me. I was questioning the designation, if it is inappropriate, as much as anything. But if it is appropriate, and the area is subject to landslides, why would anyone risk life and property by building on it?

I'm sorry I got under your guff here, Herschel - I really think we basically agree here. The city should have either acquired the property for health and safety reasons or removed the designation and allowed the reconstruction immediately after the fire.

If, as you say, the trial was over the validity of the designation, then it could be precedent-setting. Did the court really find that the geological studies that led to the original designation in the General Plan were flawed? If so, that should have been the story.

Seriously, all I know about this one is what I read in the papers (figuratively speaking) - and that for some reason you called me out on this thread. Been fun chatting, though...